Secretary of Labor v. Petro Chemical Insulation, Inc. (Commission decision, March 30, 2015)

Plain-English summary

MSHA marked Petro Chemical Insulation's penalty assessment delinquent after an agency error made it appear that Petro had missed the 30-day contest deadline. The record showed that Petro mailed its contest on May 30, 2014, and MSHA received it on June 2, the date the assessment otherwise would have become final. The Commission held that the assessment never became a final order, dismissed the reopening motion as moot, and remanded for ordinary proceedings.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(a)
• Outcome: The reopening motion was declared moot, and the timely contest was remanded for further proceedings.
• Key point: A timely penalty contest prevents an assessment from becoming a final Commission order, even if MSHA mistakenly marks it delinquent.

Full text (FMSHRC public release)

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SEQ CHAPTER \h \r 1 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH  

ADMINISTRATION (MSHA)

v.

PETRO
CHEMICAL INSULATION, INC.

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Docket No.

A.C. No.

KENT 2014-606

15-00365-348946
V7D

BEFORE: Nakamura, Acting
Chairman; Cohen and Althen, Commissioners

ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.    § 801 et seq. (2012) (“Mine Act”). On June 25, 2014, the Commission received from Petro Chemical Insulation, Inc. (“Petro”) a motion seeking to reopen a penalty assessment that had appeared to become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

On May 3, 2014, Petro received a proposed penalty assessment from the Secretary. On May 26, 2014, MSHA deemed the proposed assessment to be a final order of the Commission when it appeared, due to an MSHA error, that the operator had not filed a Notice of Contest within 30 days. However, the proposed assessment did not become a final order of the Commission until June 2, 2014.

Petro asserts that it timely contested the penalty as it mailed its contest on May 30, 2014, and its contest was received by MSHA on June 2, 2014. The Secretary does not oppose the request to reopen and notes that the operator had timely contested the penalty, but due to an MSHA error, the case had been marked as delinquent.

Having
reviewed Petro’s request and the Secretary’s response, we conclude that the proposed penalty assessment did not become a final order of the Commission because the operator timely contested the proposed assessment. Section 105(a) states that if an operator “fails to notify the Secretary that he intends to contest the . . . proposed assessment of penalty, . . . the citation and the proposed assessment of penalty shall be deemed a final order of the Commission.” 30 U.S.C. § 815(a). Here, Petro notified the Secretary of the contest. This obviates any need to invoke Rule 60(b) of the Federal Rules of Civil Procedure in order to consider reopening a final order.

Accordingly, the operator’s motion to reopen is moot, and this case is remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Acting Chairman

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/
William I. Althen

William I. Althen, Commissioner